Excerpt: - .....court. so, the defendants could not acquire absolute proprietary right. thereafter, the defendants filed an appeal before the additional district judge on october 11, 1960 against the judgment dated august 16, 1960 of the trial court. the appeal came up for hearing before the judge on january 23, 1961 when a preliminary objection was raised by the plaintiffs-respondents that the appeal was not filed in the proper court. in view of this objection, the learned judge returned the memorandum of appeal to the defendants to be filed before the competent court, which was the senior sub-judge who had been authorised by the high court to hear the appeals. the appellants filed a memorandum of appeal on that very day, that is to say january 23, 1961, before the court of senior sub-judge. there was,.....

Judgment:

S. MURTAZA FAZAL ALI, J.—

1. This appeal is directed against a judgment and decree dated March 26, 1968 passed by the High Court of Punjab & Haryana by which the High Court reversed the decree of the Senior sub-Judge, Narnaul. The appeal arises out of a suit filed for declaration of the plaintiffs for two-third share in the property in dispute. The defendants-appellants contested the suit mainly on the ground that they had become occupancy tenants of the land and, therefore, the plaintiff had no right in the land at all. The trial court accepted the defence in principle but decreed the suit of the plaintiff to the extent of two-third share only as it held that an ordinance passed by the government was declared ultra vires by the High Court. So, the defendants could not acquire absolute proprietary right. Thereafter, the defendants filed an appeal before the Additional District Judge on October 11, 1960 against the judgment dated August 16, 1960 of the trial court. The appeal came up for hearing before the judge on January 23, 1961 when a preliminary objection was raised by the plaintiffs-respondents that the appeal was not filed in the proper court. In view of this objection, the learned Judge returned the memorandum of appeal to the defendants to be filed before the competent court, which was the Senior sub-Judge who had been authorised by the High Court to hear the appeals. The appellants filed a memorandum of appeal on that very day, that is to say January 23, 1961, before the court of Senior sub-Judge. There was, however, a delay of 185 days which was the time taken during which the appeal was pending in the court of the Additional District Judge. The Senior sub-Judge condoned the delay on the ground that the appellants in filing the appeals before the Additional District Judge acted on a bona fide advice of the counsel and were pursuing a bona fide remedy in good faith. The Senior sub-Judge ultimately dismissed the plaintiffs' suit.

2. Thereafter, the plaintiffs went up in appeal to the High Court some time in the year 1962. The High Court by the judgment impugned allowed the appeal only on the ground that the Senior sub-Judge was not at all justified in condoning the delay. We are rather surprised that after having entertained the appeal the High Court should have, after a lapse of full six years, allowed the appeal only on the ground that the Senior sub-Judge was not justified in condoning the delay. It appears that the Senior sub-Judge was authorised by the High Court to hear the appeals only two months before the appeal by the defendants was filed before it and it is, therefore, obvious that during such a short period the litigants would have no notice of this change of forum and may bona fide believe that the old practice continued to exist. Prior to this, the Additional District Judge was fully competent to hear the appeals against the judgment of the Senior sub-Judge. There could be no doubt that if the appellants filed an appeal before the Additional District Judge due to a mistake of law or fact resulting from a bona fide but mistaken advice given to them by their lawyer, this would be a good ground for condoning the delay. Moreover, it is well settled that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision he is entitled to the exclusion of the time taken in such proceeding. The combined effect of Sections 5 and 14 of the Limitation Act would, therefore, undoubtedly entitle the appellants to exclude the time taken by them while the appeal was pending before the Additional District Judge. In this view of the matter it is manifest that the Senior sub-Judge was fully justified in condoning the delay and the High Court was, therefore, clearly wrong in allowing the appeal and setting aside the judgment of the Senior sub-Judge on the ground that he had wrongly condoned the delay. In fact, the High Court having entertained the appeal and keeping the same on its file should have decided it on merits. Since, however, the High Court has not given any decision on merits, we have no other alternative but to remand the case back to the High Court for disposal of the appeal on merits and in accordance with law. We, therefore, allow this appeal, set aside the judgment and decree of the High Court and remand the case back to the High Court for disposal in accordance with law. The question of condoning the delay is no longer open and has been finally decided by us. The High Court is requested to give top priority to this case which is already 12 years old in this Court. In the circumstances of the case there will be no order as to costs.